Citation Nr: 21004584 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 17-09 979 DATE: January 27, 2021 ORDER Entitlement to service connection for a bilateral foot disorder is denied. Entitlement to service connection for a cervical spine disorder is denied. Entitlement to service connection for a right hip disorder is denied. FINDINGS OF FACT 1. The Veteran is currently diagnosed with pes planus with plantar fasciitis, stenosis of the cervical spine, degeneration of the cervical spine, and cervical radiculitis (a cervical spine disorder), and bursitis and arthritis of the right hip (a right hip disorder). 2. At the time of the January 1986 service entrance examination, the Veteran was diagnosed with pes planus. 3. The Veteran did not experience any foot, cervical spine, and/or right hip injury, disease, or event during service. 4. The preexisting pes planus did not undergo an increase in severity during service. 5. The currently diagnosed degenerative cervical spine and right hip disorders did not manifest as chronic symptoms in service, to a compensable degree within the one year presumptive period, or as continuous symptoms since service. CONCLUSIONS OF LAW 1. The Veteran’s bilateral pes planus preexisted active service. 38 U.S.C. §§ 1153, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.306. 2. The criteria for service connection for a bilateral foot disorder, including as due to aggravation of a preexisting disability, have not been met. 38 U.S.C. §§ 1153, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.306, 3.326(a). 3. A cervical spine disorder was not incurred in active service and may not be presumed to have been incurred in active service. 38 U.S.C. §§ 1112, 1131, 1133, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.326(a). 4. A right hip disorder was not incurred in active service and may not be presumed to have been incurred in active service. 38 U.S.C. §§ 1112, 1131, 1133, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.326(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, had active service from April 1986 to March 1990. This matter came before the Board of Veterans’ Appeals (Board) on appeal from a March 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Veteran testified at a November 2020 virtual Board hearing before the undersigned Veterans Law Judge. The hearing transcript has been associated with the record. The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). Concerning the duty to notify, the record reflects that the Veteran received adequate VCAA notice prior to the issuance of the relevant rating decision on appeal. Regarding the duty to assist, the record reflects that VA obtained all relevant documentation to the extent possible. While the Veteran did not receive VA foot, neck, or hip examinations during the course of this appeal, as the Board finds no in-service injury, disease, or event, and no evidence of in-service worsening (aggravation) of a preexisting foot disorder, in the instant decision, the Board finds remand for one or more VA examinations to be unnecessary. See McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006). For these reasons, the Board finds that the duties to notify and assist the Veteran in this case have been fulfilled. Neither the Veteran nor the evidence has raised any specific contentions regarding the duties to notify or assist. 1. Service Connection for a Bilateral Foot Disorder 2. Service Connection for a Cervical Spine Disorder 3. Service Connection for a Right Hip Disorder Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. The currently diagnosed degenerative cervical spine and hip disorders are chronic diseases (arthritis) under 38 C.F.R. § 3.309(a). As such, the presumptive service connection provisions under 38 C.F.R. § 3.303(b) for service connection based on “chronic” symptoms in service and “continuous” symptoms since service are applicable to the cervical spine and hip service connection issues on appeal. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Under 38 C.F.R. § 3.303(b), service connection will be presumed where there are either chronic symptoms shown in service or continuity of symptomatology since service for diseases identified as “chronic” in 38 C.F.R. § 3.309(a). Walker, 708 F.3d at 1338-40 (holding that continuity of symptomatology is an evidentiary tool to aid in the evaluation of whether a chronic disease existed in service or an applicable presumptive period). With a chronic disease shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). In addition, where a veteran served 90 days or more of active service, and a chronic disease become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1133, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. At the time of the service entrance examination, every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111 (emphasis added). Only such conditions as are recorded in examination reports are considered as “noted.” 38 C.F.R. § 3.304(b). When determining whether a defect, infirmity, or disorder is “noted” at entrance into service, supporting medical evidence is needed. Crowe v. Brown, 7 Vet. App. 238 (1994). If a preexisting disorder is noted upon entry into service, service connection may be granted based on aggravation during service of that disorder. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(b); see Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). Independent medical evidence is needed to support a finding that the preexisting disorder increased in severity in service. See Paulson v. Brown, 7 Vet. App. 466, 470-471 (1995); Crowe, 7 Vet. App. at 246. Moreover, “temporary or intermittent flare-ups of a pre-existing injury or disease are not sufficient to be considered aggravation in service unless the underlying condition, as contrasted to symptoms, is worsened.” Crowe at 247 48 (1994); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). However, the increase need not be so severe as to warrant compensation. Browder v. Derwinski, 1 Vet. App. 204, 207 (1991). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 C.F.R. § 3.306(b)(1); Hunt, 1 Vet. App. at 297. Where the pre service disability did undergo an increase in severity during service, clear and unmistakable evidence (obvious or manifest, with the burden on VA) is required to rebut the presumption of aggravation. 38 C.F.R. § 3.306(b). The Veteran argues that service connection for pes planus, which existed prior to service, is warranted on the basis of aggravation of the disability during service. As will be discussed below, the Veteran was diagnosed with pes planus at service entrance. The available post-service VA treatment records do not specifically discuss the Veteran having pes planus; however, in the active problem list there is a notation of plantar fasciitis, which is often a symptom of pes planus. As such, after considering the evidence of record, the Board finds that the Veteran is currently diagnosed with the foot disorder of pes planus with plantar fasciitis, and considers whether service connection is warranted on the basis of aggravation by service. Even assuming, arguendo, that the plantar fasciitis is a separate foot disorder, for the reasons discussed below, the Board finds no foot injury, disease, or event in service that would warrant the grant of service connection for plantar fasciitis on a direct basis. The Veteran also argues that service connection for one or more cervical spine and/or right hips disorders is warranted, either as directly related to service or as secondary to a currently diagnosed foot disorder. As the instant decision finds that service connection for a bilateral foot disorder is not warranted, the Board finds that it need not further discuss the question of service connection for cervical spine and/or right hip disorders on a secondary basis. 38 C.F.R. § 3.306. Per the report from the January 1986 service entrance examination, at service entrance the Veteran was diagnosed with mild, asymptomatic pes planus; however, at the time of the November 2020 virtual Board hearing, the Veteran testified that the pes planus was actually severe in symptomatology at service entrance, due to years of playing football and being athletic in general. As the instant decision finds that the pes planus was asymptomatic at service separation, the Board need not resolve the conflicting evidence concerning the severity of the pes planus at service entrance, as it is irrelevant to the outcome of the instant decision and to the finding of no worsening during service. Review of the service treatment records reflect that the Veteran reported to sick call on many occasions during service. In June 1986, the Veteran sought treatment for a headache, an upper respiratory infection, and a laceration to the thigh. In June 1987, the Veteran sought treatment for penial lesions. From 1988 to 1990, the Veteran sought treatment on multiple occasions for skin problems. Additionally, in August 1988, the Veteran sought treatment for an injury to the right ring finger that occurred while lifting weights. The service treatment records, which are complete, do not reflect that the Veteran ever complained of, or sought treatment for, any foot, hip, or neck injuries and/or disability symptoms. Further, per the report from an April 1989 examination, which appears to be the last examination prior to service separation, the Veteran’s feet were noted to be normal, indicating that the pes planus was still not symptomatic (or had improved if the symptoms at service entrance were as bad as the Veteran testified to in November 2020). There was also no notation of any neck or right hip disabilities or symptoms at that time. Review of the VA treatment records reflect that the Veteran was diagnosed with a cervical spine disorder on or about April 2013, and a hip disorder on or about August 2013. Further, plantar fasciitis was diagnosed on or about February 2016. The Board notes that no disabilities were diagnosed earlier than 2012. Per a December 2012 VA treatment record, the Veteran’s feet were normal other than some numbness and tingling, which appeared to be related to the back or diabetes mellitus, type II. A separate December 2012 VA treatment record, in which the Veteran was seeking treatment for back and neck pain, noted that the Veteran had prior work as a truck driver. The Board notes that work as a truck driver often involves heavy lifting. Per a March 2013 VA treatment record, the Veteran indicated having pain and numbness in the feet for the previous 10 years (beginning on or about 2003). Again, the VA treatment records indicate that the foot symptoms were likely due to non service-connected diabetes mellitus, type II. Further, the VA treatment record also reflects that the Veteran advanced having neck pain for almost 10 years (beginning on or about 2003). At that time, the Veteran conveyed being a manual laborer who moved heavy household objects. Veteran’s Credibility Throughout the course of this appeal, both in written lay statements and in testimony, the Veteran has made a number of lay statements relevant to the issues on appeal. For the reasons discussed below, the Board finds such lay assertions to not be credible, as they are outweighed by the more contemporaneous lay and medical evidence of record. First, the Board notes that at the November 2020 virtual Board hearing the Veteran acknowledged not seeking treatment for foot, neck, or hip disabilities in service; however, the Veteran testified to not seeking treatment because when in service “you don’t complain.” In the February 2017 substantive appeal, the Veteran also conveyed having multiple neck injuries during service that he did not seek treatment for or discuss because of a “code of silence” so that when hurting during service the Veteran would often keep quiet rather than seek treatment. Such recent lay assertion of having symptoms during service but not seeking treatment is directly contradicted by more contemporaneous lay and medical evidence, including in the service treatment records discussed above. Per the service treatment records, the Veteran reported to sick call on multiple occasions over the four years in service to receive treatment for various health problems, including lacerations, skin diseases, upper respiratory infections, and even an orthopedic injury to the right hand while weightlifting. The Board does not find it credible that the Veteran would have sought treatment for these medical problems, but felt the need to remain silent as to the purported foot, neck, and hip injuries/symptoms, as the reasoning would equally apply to the disorders for which the Veteran did seek medical treatment during service. Second, during the course of this appeal the Veteran has made various statements indicating that symptoms of foot, neck, and/or right hip disabilities have been present since at or near service separation. In a May 2014 statement, the Veteran advanced knowing something was wrong within three months of service separation due to having less strength at service separation than prior to entering service. Per an October 2015 statement, the Veteran advanced having seen a doctor many times for these orthopedic disabilities. Further, at the November 2020 virtual Board hearing, the Veteran testified to having neck and hip symptoms since 1990. The Veteran also denied that the symptoms were related to post-service work, as the Veteran testified that such post-service work was mostly of the light-labor variety. Having reviewed the record, the Board finds that these more recent statements by the Veteran concerning work history and continuous symptoms since service separation are inconsistent with, and outweighted by, other lay and medical evidence, so are not credible. Rather, the Board finds the more contemporaneous evidence of symptoms manifesting on or about 2003, 13 years after service separation, to be more credible/probative. See Curry v. Brown, 7 Vet. App. 59 (1994) (noting that contemporaneous evidence has greater probative value than history as reported by the veteran; affirming Board decision that cited from MCCORMICK ON EVIDENCE (3rd ed.1984) for the proposition that “memory hinges on recency” and that earlier statements are generally more trustworthy than later ones). While the Veteran more recently advanced knowing something was wrong within three months of service separation, as discussed above, VA treatment records from March 2013 report that the Veteran stated that orthopedic symptoms first manifested approximately 10 years prior, which would have been on or about 2003, or 13 years after service separation. Further, the VA treatment records specifically noted the Veteran’s post-service employment history, which involved heavy lifting, and not light labor as testified to by the Veteran in November 2020. As the lay statements made by the Veteran in March 2013 were in search of treatment, the Board finds such contemporaneous evidence to be of more probative value. See Harvey v. Brown, 6 Vet. App. 390, 394 (1994) (Board decision properly assigned more probative value to a private hospital record that included lay history that was made for treatment purposes than to subsequent statements made for compensation purposes). As to the Veteran’s October 2015 statement concerning seeing a doctor on multiple occasions for the disabilities on appeal, at the November 2020 virtual Board hearing, the Veteran clarified that no treatment was sought until on or about 2012. Finally, the Board notes that in a February 2015 statement, the Veteran argued that reenlistment was sought but was denied. It is the Veteran’s contention that reenlistment was denied due to foot, neck, and/or right hip disorders noted at service separation. Review of the service treatment records reflect that in September 1989 the Veteran was part of a weight control program. At that time, the Veteran weighed 220 pounds, with a maximum allowable weight of 194 pounds; therefore, reenlistment was denied due to the Veteran failing to make weight standards. For all the reasons discussed above, the Board does not find the Veteran’s lay statements regarding in-service injuries and symptoms and continuous post-service symptoms to be credible, as they are substantially outweighed by the more contemporaneous lay and medical evidence of record. Preexisting Foot Disorder As discussed above, service treatment records reflect a diagnosis of pes planus at service entrance, thus, a preexisting pes planus disorder was “noted” at service entrance. In deciding a claim based on aggravation, after having determined the presence of a preexisting condition, the Board must first determine whether there has been any worsening of the disability during service, and then whether this constitutes an increase in the disability. Browder v. Brown, 5 Vet. App. 268, 271 (1993); Hensley v. Brown, 5 Vet. App. 155, 163 (1993). Having reviewed all the evidence of record, lay and medical, the Board finds that the weight of the evidence is against a finding that the preexisting pes planus (now pes planus with plantar fasciitis) increased in severity during active service. Per the above, the report from the January 1986 service entrance examination shows that at service entrance the Veteran was diagnosed with mild, asymptomatic pes planus, although at the November 2020 virtual Board hearing the Veteran testified that the symptoms at service entrance were actually severe. Service treatment records do not reflect any foot injury, disease, or event during service, and the Veteran did not seek treatment for foot disorder symptoms during service. To the extent the Veteran argues that there were worsening foot symptoms during service for which he did not seek treatment, for the reasons discussed above, the Board does not find such lay statements to be credible. The report from the April 1989 service examination, which was the last examination prior to service separation, shows that the Veteran had no foot disorder symptoms at that time. Further, post-service VA treatment records reflect that, by the Veteran’s own lay statements and reported histories when in search of treatment, the feet remained asymptomatic until on or about 2003, approximately 13 years after service separation. Additionally, the currently diagnosed plantar fasciitis, which the Board has found to be a symptom of the pes planus, was not diagnosed until on or about February 2016, approximately 26 years after service separation. To the extent the Veteran has recently made lay statements indicating that there were increased symptoms of pain at service separation, for the reasons discussed above, the Board does not find such statements to be credible, as the statements are outweighed by the more credible and probative contemporaneous lay and medical evidence. As the evidence of record reflects that the pes planus was asymptomatic until on or about 2003, approximately 13 years after service separation, and as the evidence reflects that the plantar fasciitis, which is a progression of the pes planus, did not manifest until February 2016, approximately 26 years after service separation, the weight of the evidence shows no aggravation of the preexisting pes planus during active service. As the preponderance of the evidence is against a finding of worsening during service, the presumption of aggravation does not arise in this case, and thus the burden on VA to rebut the presumption (by clear and unmistakable evidence) does not arise. See 38 U.S.C. § 1153; 38 C.F.R. § 3.306. Because aggravation by service of the preexisting pes planus is not demonstrated, the appeal for service connection for a bilateral foot disorder must be denied. Neck and Right Hip Disorders After a review of all the evidence, lay and medical, the Board finds that a preponderance of the evidence is against a finding that the Veteran’s currently diagnosed degenerative neck and right hip disorders began in service, showed chronic symptoms in service, manifested to a compensable degree within one year of service, or had continuous symptoms since service. Further, the preponderance of the evidence is against a finding that one or more currently diagnosed neck and/or right hip disorders were caused by an in service injury, disease, or event. Again, while the Board finds that the evidence supports that currently diagnosed plantar fasciitis is a symptom of the preexisting pes planus, even assuming, arguendo, that the Veteran has one or more foot disorders not related to the preexisting pes planus, the evidence also does not support that a foot disorder was caused by an in service injury, disease, or event. On the question of chronic symptoms during service and/or manifestation of symptoms to a compensable degree within one year of service, as discussed above, service treatment records reflect no neck or right hip injury or disorders during service, and the neck and right hip were normal near the time of service separation. Further, VA treatment records from March 2013 indicate that orthopedic symptoms did not manifest until on or about 2003, approximately 13 years after service separation. To the extent the Veteran has offered lay statements indicating that symptoms of a neck and/or right hip disability were present during service, for the reasons discussed above, the Board does not find such lay statements to be credible. For these reasons, as the Veteran’s service ended in March 1990, the evidence does not show that a degenerative neck and/or right hip disorder had its onset during service, or chronic symptoms in service, or manifested to a compensable degree within one year of service. The Board next finds the weight of the evidence demonstrates that symptoms of a degenerative neck and/or right hip disorder have not been continuous since service separation in March 1990. As discussed above, VA treatment records reflect that, by the Veteran’s own admission, orthopedic symptoms did not manifest until on or about 2003. To the extent the Veteran has since offered lay statements that symptoms of a neck and/or right hip disorder have been present since service separation, for the reasons discussed above, the Board does not find such statements to be credible. The 13-year period between service and manifestation of neck and/or right hip symptoms is one factor that weighs against a finding of service incurrence, including by continuous symptoms since service from which service incurrence would be presumed. See Buchanan v. Nicholson, 451 F.3d 1336 (Fed. Cir. 2006) (the lack of contemporaneous medical records is one fact the Board can consider and weigh against the other evidence, although the lack of such medical records does not, in and of itself, render the lay evidence not credible); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and the medical complaint of a claimed disability is one factor to consider as evidence against a claim of service connection). Additional factors weighing against finding continuous symptomatology since service include the context of lack of any symptoms during service, the normal April 1989 in-service examination, and the Veteran’s own lay statements in search of treatment from VA indicating that symptoms of an orthopedic disorder did not manifest until on or about 2003, many years after service separation. The Board also finds the preponderance of the evidence is against a finding that a nexus exists between one or more neck or right hip (or foot) disorders and an in service injury, disease, or event. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a),(d). The Veteran argues that one or more neck or right hip (or foot) disorders are related to strain/wear-and-tear from hard/severe in-service physical training; however, the evidence of record does not support that the in-service training resulted in an injury to the neck, right hip, or either foot. No such injuries, or symptoms of an injury, or complaints or reports or treatment for such, are found within the service treatment records. Rather, VA treatment records indicate that currently diagnosed orthopedic disorders are likely related to the Veteran’s post service employment as a truck driver and/or manual laborer who moved heavy household objects. To the extent the Veteran has argued that there were in-service injuries and orthopedic symptoms, and that post-service employment involved light labor, for the reasons discussed above, the Board does not find such lay statements to be credible. (Continued on the next page)   Although it has considered the Veteran’s lay statements attributing a currently diagnosed neck or right hip (or foot) disorder to service, the Board finds that, while the Veteran is competent to report orthopedic symptoms, as a lay person, the Veteran is not competent to provide a nexus opinion in this case. The issues are medically complex, as they require knowledge of the orthopedic system and interpretation of complicated diagnostic medical testing, with no actual injuries in service and not continuous symptoms, post-service stresses and heavy lifting, and post-service treatment and diagnoses years after service. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007); Clyburn v. West, 12 Vet. App. 296, 301 (1999) (holding that a veteran is not competent to relate currently diagnosed chondromalacia patellae or degenerative joint disease to the continuous post service knee symptoms); Savage v. Gober, 10 Vet. App. 488, 496 97 (1997) (requiring that a veteran present medical nexus evidence relating currently diagnosed arthritis to in-service back injury). For these reasons, the Board finds that the weight of the evidence is against direct or presumptive service connection for any currently diagnosed neck or right hip (or foot) disorder under the provisions of 38 C.F.R. §§ 3.303, 3.307, and 3.309. As the preponderance of the evidence is against service connection, the appeal must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Blowers, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.